Betty W. Thomas v. Mississippi Department of Employment Security , 2014 Miss. App. LEXIS 622 ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CC-00238-COA
BETTY W. THOMAS APPELLANT
v.
MISSISSIPPI DEPARTMENT OF APPELLEE
EMPLOYMENT SECURITY
DATE OF JUDGMENT: 01/24/2014
TRIAL JUDGE: HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: BETTY W. THOMAS (PRO SE)
ATTORNEYS FOR APPELLEE: ALBERT B. WHITE
LEANNE FRANKLIN BRADY
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION: AFFIRMED THE DECISION OF THE
BOARD OF REVIEW OF THE MISSISSIPPI
DEPARTMENT OF EMPLOYMENT
SECURITY THAT APPELLANT WAS
DISCHARGED FOR MISCONDUCT AND
WAS NOT ENTITLED TO
UNEMPLOYMENT BENEFITS
DISPOSITION: AFFIRMED - 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ.
ROBERTS, J., FOR THE COURT:
¶1. In May 2013, Betty W. Thomas was discharged from her employment with the
Cleveland School District for refusing to or failing to follow directives given by her
immediate supervisor. She sought unemployment benefits through the Mississippi
Department of Employment Security (MDES), and the administrative law judge (ALJ)
denied her request for benefits because her actions leading to discharge constituted
misconduct. Thomas appealed to the Board of Review, which adopted the ALJ’s findings
and affirmed the denial of unemployment benefits. Thomas then appealed to the Bolivar
County Circuit Court; it also affirmed the denial of unemployment benefits. She now appeals
to this Court for a review of whether the denial of unemployment benefits was proper. We
find no error; therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Thomas began working for the Cleveland School District as an administrative
assistant on July 22, 2008, until she received a letter in May 2013, stating that her contract
would not be renewed for the upcoming year.
¶3. Following her termination, Thomas filed for unemployment benefits. A claims
examiner investigated her request and determined that she was not eligible for unemployment
benefits due to “disqualifying misconduct.” Thomas appealed the claims examiner’s finding,
and a telephonic hearing with an ALJ was held on August 14, 2013. Betty Jones, an
executive assistant with the Cleveland School District, and Diane Hill, a principal with the
Cleveland School District, both testified at the hearing that Thomas’s nonrenewal was based
on her failure to perform her duties properly, as well as other acts of insubordination and
unprofessional behavior. Hill testified that Thomas received three written warnings: August
2010, July 2011, and August 2012. Her warnings were based on her refusal to complete
paperwork as requested by Hill and for interrupting a meeting and becoming loud and rude.
The final incident occurred in May 2013 when Hill asked Thomas to complete paperwork,
but Thomas refused saying it was not part of her job description. Thomas testified that she
performed her assigned duties as requested, and that her contract was not renewed because
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she refused to retire in May 2013. Subsequent to the hearing, the ALJ found: “The facts
show that the employer discharged . . . [Thomas] because she repeatedly refused or failed to
follow the directive given by her immediate supervisor. . . . Therefore, . . . [Thomas’s] refusal
to perform her assigned job duties was a willful disregard of the employer’s best interest,
which constitutes misconduct . . . .”
¶4. Thomas appealed to the Board of Review, and it found that “after careful review and
consideration of all the evidence, the Board of Review adopts the Findings of Fact and
Opinion of the . . . [ALJ,] and hereby affirms the decision.” Thomas then appealed to the
circuit court. The circuit court entered an order on January 27, 2014, affirming the Board of
Review’s decision. Thomas then filed the present appeal in which she claims she has
unjustly been denied unemployment benefits.
ANALYSIS
¶5. “Mississippi Code Annotated section 71-5-531 (Rev. 2011) states: ‘In any judicial
proceedings under this section, the findings of the [B]oard of [R]eview as to the facts, if
supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction
of said court shall be confined to questions of law.’” Patterson v. Miss. Dep’t of Emp’t Sec.,
95 So. 3d 719, 721 (¶9) (Miss. Ct. App. 2012). Further, “[w]here there is the required
substantial evidence, this Court has no authority to reverse the circuit court's affirmance of
the decision of the Board of Review. . . . Therefore, [the appellate court] must not reweigh
the facts of the case or insert its judgment for that of the agency.” Id. at (¶10) (quoting
Broome v. Miss. Emp’t Sec. Comm’n, 921 So. 2d 334, 337 (¶12) (Miss. 2006)).
¶6. This Court must now determine whether there was substantial evidence to support the
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denial of unemployment benefits to Thomas, because she committed disqualifying
misconduct pursuant to Mississippi Code Annotated section 71-5-513(A)(1)(b) (Rev. 2011).
Section 71-5-513(A)(1)(b) provides that an individual may be disqualified from receiving
unemployment benefits if “[s]he was discharged for misconduct connected with [her] work.”
The term “misconduct” was defined in the seminal case of Wheeler v. Arriola, 408 So. 2d
1381, 1383 (Miss. 1982), as:
[C]onduct evincing such willful and wanton disregard of the employer's
interest as is found in deliberate violations or disregard of standards of
behavior which the employer has the right to expect from his employee. Also,
carelessness and negligence of such degree, or recurrence thereof, as to
manifest culpability, wrongful intent or evil design, and showing an intentional
or substantial disregard of the employer's interest or of the employee's duties
and obligations to his employer, came within the term. Mere inefficiency,
unsatisfactory conduct, failure in good performance as the result of inability
or incapacity, or inadvertences and ordinary negligence in isolated incidents,
and good faith errors in judgment or discretion were not considered
“misconduct” within the meaning of the statute.
“Misconduct imports conduct that reasonable and fair-minded external observers would
consider a wanton disregard of the employer's legitimate interests.” Patterson, 95 So. 3d at
722 (¶13) (quoting Shavers v. Miss. Emp’t Sec. Comm’n, 763 So. 2d 183, 185 (¶8) (Miss.
2000)).
¶7. We first note that Thomas failed to cite any authority in support of her argument.
Failure to do so acts as a procedural bar to the issue, and this Court is under no obligation to
consider her argument on appeal. See M.R.A.P. 28(a)(6) (An appellant’s brief must “contain
the contentions of [the] appellant with respect to the issues presented, and the reasons for
those contentions, with citations to the authorities, statutes, and parts of the record relied
on.”); Taylor v. Kennedy, 914 So. 2d 1260, 1262 (¶4) (Miss. Ct. App. 2005) (“[F]ailure to
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cite any authority is a procedural bar, and [an appellate court] is under no obligation to
consider the assignment.”).
¶8. Procedural bar notwithstanding, Thomas’s issue lacks merit. At the telephonic
hearing, Jones testified that Thomas was discharged for her inappropriate conduct and failing
to perform her job duties. Hill reiterated Thomas’s inappropriate conduct and stated that
Thomas was discharged for insubordination. Hill explained that she would ask Thomas to
handle certain tasks, such as filling out paperwork and forms, and that Thomas would refuse,
saying it was not her job. Hill also testified that Thomas was written up on three separate
occasions, all relating to her unprofessional behavior and failure to perform her job duties
as requested by Hill. Thomas’s testimony at the hearing consisted of her denial that she
failed to perform her job duties. She claimed that she did her work and was not aware of any
problems until she received her nonrenewal letter.
¶9. While there was conflicting testimony, the Board of Review is entitled to accept the
testimony of one witness over the other. Magee v. Miss. Dep’t of Emp’t Sec., 77 So. 3d 1159,
1163 (¶9) (Miss. Ct. App. 2012). In this case, the Board of Review accepted Hill’s and
Jones’s testimony that Thomas repeatedly refused to complete assigned tasks and found
Thomas was discharged for misconduct. This Court is not permitted “to second guess how
the Board resolves conflicting testimony.” Id. (quoting Quinn v. Miss. Dep’t of Emp’t Sec.,
56 So. 3d 1281, 1283 (¶9) (Miss. Ct. App. 2011)). Therefore, based upon our review of the
record, we find that there was substantial evidence in the record to support the finding that
Thomas committed misconduct, and was appropriately disqualified from receiving
unemployment benefits.
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¶10. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT IS
AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.
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